Increases for the employment of counsel, expert witnesses and other third parties

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We require specific information in connection with an increase in authorised expenditure for the employment of counsel, professional and expert witnesses.

You need our specific authority to incur the cost of such an outlay, not just the level of expenditure sufficient to meet the anticipated costs. You need sufficient expenditure to meet the VAT element of the fee as well as the estimated fee.

It is particularly important to keep a careful watch on the level of anticipated expenditure and to ensure that you and counsel are covered at all times during the case.

Employment of counsel

Information needed and factors taken into account

The use made of counsel under advice and assistance tends to be limited.

You can ask for increases:

To obtain an opinion of counsel in relation to the subject matter of a legal aid application
To cover the cost of a consultation with counsel

If you are seeking an increase for an opinion of counsel:

You should give full reasons why this is necessary
There should be a proper explanation of the background and specifically any complexity or novelty
You should always try to show that the problem is beyond your competence or general experience

In considering your request we will take into account the following factors:

What is the legal issue counsel is to consider?
Is this a matter so complex or so unusual that it appears to be outwith the scope of your knowledge or experience?
Is it premature? Is there enough information to place before counsel to enable counsel to give a meaningful opinion, or is there more information to be gathered?
What is the opinion to be used for?
Will it perhaps save expense in the long run?
Is the opinion necessary for consideration of a legal aid application?

There is perhaps more scope for the employment of counsel under ABWOR:

An appeal to the High Court on a plea to the competency, relevancy or plea in bar of trial [section 174 of the Criminal Procedure (Scotland) Act 1995]
Double Jeopardy proceedings
Post-conviction proceedings such as a DTTO in the High Court

Appeal applications – prospects of success

Opinion of counsel covered by existing certificate

At first instance, the existing legal aid certificate will cover an Opinion from junior counsel (or senior counsel if senior was instructed with our approval) on the prospects of success of an appeal.

Senior counsel

Use of counsel under A&A

A request for senior counsel under advice and assistance should be for advice on a very complex, significant or novel point of law.

Expert witnesses

We can only grant an increase under advice and assistance for an expert to provide a report for the purpose of giving advice to your client. Not for the purpose of giving evidence in court which is clearly a step in instituting, conducting or defending proceedings.

If you seek an increase to employ an expert, you should provide:

The expert’s name and field of expertise.
The expert’s location.
The expert’s hourly rate and the number of hours required to complete the required report.

In addition you should explain:

Why this is necessary.
Why the particular expert is appropriate.

You must get our prior approval before instructing an expert. You should make the expert aware of the maximum level of expenditure available and that it must not be exceeded without our further approval.

Expert witnesses based at a distance

In the unusual event that you need to instruct an expert, it is normally more expensive to employ an expert who is located some distance from your office.

If you seek to employ such an expert, you should provide details of:

Any attempt to find a suitable expert based nearby
Why your chosen expert is more appropriate
Likely costs of employing that expert
Their relevant details

The need to work within initial limit of authorised expenditure and increases in authorised expenditure

Increases in post-conviction ABWOR breaches and reviews, multiple deferred sentences and templates